- Associated Press - Thursday, July 14, 2016

OMAHA, Neb. (AP) - A federal appeals panel on Thursday vacated a 2014 ruling by a federal judge that would have made it easier for petition-drive organizers to place statewide initiatives on the ballot.

In a split decision, a three-judge panel of the 8th U.S. Circuit Court of Appeals found that Omaha businessman Kent Bernbeck did not have standing to challenge a state constitutional requirement that forces petition circulators to travel outside large urban areas for signatures.

In November 2014, U.S. District Judge Joseph F. Bataillon struck down a state constitutional requirement for petition circulators to visit at least 38 of Nebraska’s 93 counties and collect signatures from at least 5 percent of the registered voters in each in order to place an issue on the ballot. His ruling came in response to a lawsuit against the Nebraska Secretary of State filed by Bernbeck, who has fought for years for looser petitioning rules.

Bernbeck argued that the requirement dramatically increases the time and travel costs to gather signatures. Attorneys pointed to sparsely populated Arthur County, where petition circulators would only have to gather 17 signatures to meet the voter threshold. In Douglas County, which encompasses Omaha, circulators would need more than 16,000 signatures to fulfill the same requirement.

That, Bernbeck argued, effectively makes rural votes more valuable than urban votes. Nearly half of the state’s population lives in five eastern Nebraska counties.

But 8th Circuit Judges Bobby Shepherd and Arlen Beam found that Bernbeck never submitted a petition to put an initiative on the November 2014 ballot. Simply having the intention to do so, they said, wasn’t enough to give him standing to challenge the law.

Judge Jane Kelly disagreed, saying in her dissent that U.S. courts have consistently found that an intention to gain access to a ballot in an upcoming election gives a person standing to challenge ballot-access restrictions. Bernbeck shouldn’t have to incur economic harm in order to challenge the state law, she said.

“Say the Nebraska Constitution required residents of sparsely-populated counties to pay a fee of $50 to place an initiative on the ballot, but required residents of the most populous counties to pay $500,000,” Kelly theorized. “Under the court’s rationale, Bernbeck, as a resident of a populous county, would be unable to bring an equal protection challenge without attempting to satisfy the ‘precondition’ by paying the half-million-dollar fee. That cannot be right.”

The Nebraska Attorney General’s Office declined to comment on Thursday’s opinion.

An attorney for Bernbeck did not immediately return phone messages Thursday seeking comment.

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